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HomeMy WebLinkAboutReso - CC - 004-2009RESOLUTION NO. 4-2009 RESOLUTION OF THE CITY OF BURLINGAME CALLING A MAIL BALLOT ELECTION FOR MAY 5, 2009, FOR THE SUBMITTAL OF A PROPOSED ANNUAL STORM DRAINAGE FEE AND ADOPTING PROCEDURES FOR THE CONDUCT OF THE ELECTION RESOLVED by the CITY COUNCIL OF THE CITY OF BURLINGAME that: WHEREAS, Article XIIID of the California Constitution (Proposition 218) requires the City to follow certain procedural and substantive requirements relating to the imposition of property -related fees and charges, such as the proposed Storm Drainage Fee; and WHEREAS, the City has determined that the Fee is a property -related fee, subject to Proposition 218; and WHEREAS, the City Council has held the required protest hearing and has not received a majority protest; and WHEREAS, pursuant to ordinance the City Council has authorized the use of a mail ballot election for any election or assessment ballot proceeding required or authorized by Article XIIIC or XIIID of the California Constitution; WHEREAS, in its current condition Burlingame's 80 -year old storm drain system presents pollution to San Francisco Bay from polluted runoff and flooding; and WHEREAS, the City does not currently have the funds needed for storm drain improvements, is not able to keep pace with regular maintenance needs, and has had to use one time fund transfers to address a few of the most critical repairs each year; and WHEREAS, it will never be any less expensive to repair the City's storm drain system, and our needs will only become more severe and the repairs more expensive to complete; and WHEREAS, during these economic times, it is more important than ever to improve our storm drains to help protect property values and help reduce insurance rates; and WHEREAS, a local storm drain fee would directly address Burlingame's storm drain needs and ensure local control over all funds because the money will remain stay in our community and cannot be taken by the State; NOW, THEREFORE, IT IS HEREBY DETERMINED and ORDERED that: 1. The City Council has: (a) reviewed and confirmed the written report containing a list of all parcels to which the Fee is proposed to apply and the Fee for each property; (b) heard and considered testimony from all persons who wished to be heard at the hearing; (c) heard and considered all objections, protests, or other written communications from any persons owning real property subject to the proposed Fee; (d) received and considered oral and documentary evidence pertaining to the Fee; (e) remedied and corrected clerical errors, if any, or informality in the written report; (f) corrected minor defects, if any, in the proceedings. 2. The City Council hereby calls an election, to be held solely by mail ballot, for the purpose of submitting the Storm Drainage Fee to a vote of the owners of parcels subject to the Fee. The date of the election shall be Tuesday, May 5, 2009. Ballots must be received by the City Clerk no later than 8:00 p.m. on the date of the election. The City Clerk shall publish Notice of the Election as required. 3. At the election called by this ordinance the following measure shall be submitted to the property owners voting: To: • improve, upgrade and maintain the deteriorated storm drain system • protect water quality • further reduce pollutants flowing into our creeks and San Francisco Bay • prevent street flooding that impedes residents and police/fire emergency access • improve local drainage shall the City of Burlingame enact a storm drainage fee at the rate of 4.192 cents per impervious square foot, adjusted for inflation not exceeding 2% annually, with independent audits, citizen's oversight, and requiring all funds expended only on storm drains? 4. The storm drainage fee shall remain in effect until 2038. 5. The City Attorney shall prepare an Impartial Analysis in accordance with Elections Code Section 9280. 6. Arguments In Favor and Arguments Against may be submitted in accordance with Elections Code Section 9281 and following. Rebuttal arguments may also be submitted. The dates for arguments to be submitted shall be set by the City Clerk. 7. The election called by this resolution shall be conducted in accordance with procedures as set forth in the Procedures, attached hereto and incorporated herein by this reference. 8. The City Clerk may retain such services as are required to implement this election and may contract with the County of San Mateo for election services. The City Manager may designate city personnel to assist the City Clerk. 9. The City Council finds that this activity is not a project and therefore is not subject to the California Environmental Quality Act pursuant to CEQA Guidelines Section 15060(c)(3). OAayor I, MARY ELLEN KEARNEY, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was adopted at a regular meeting of the City Council held on the 20`h day of January, 2009, by the following vote: AYES: COUNCILMEMBERS: BAYLOCK, DEAL, KEIGHRM, NAGEL, O'NAHONY NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE City Clerk PROCEDURES FOR THE CONDUCT OF A BALLOT ELECTION BY MAIL FOR A STORM DRAINAGE FEE A. General Procedures This mail ballot election shall constitute an election for the purposes of Article II of the California Constitution. The City Council recognizes that a mail ballot election for property owners, as opposed to registered voters, is a unique circumstance not fully contemplated by the California Elections Code. Thus, it is the intent of the City Council that the election be conducted in substantial compliance with the requirements of the California Elections Code to the extent feasible, and otherwise in accordance with these procedures. 2. The City Clerk shall be responsible for the conduct of the election governed by these procedures. The City Clerk may deputize or designate one or more other persons to assist the City Clerk in conducting the election and canvassing the ballots. When the City Clerk is designated to perform a responsibility the designee of the City Clerk may perform such responsibility. 3. The election shall be by mail ballot only. 4. The date of the election shall be May 5, 2009. 5. The City Clerk shall publish notice of the time and location that ballots will be canvassed at least ten days before the date of the election. B. Mailing of Ballots 'Record Owner" means the owner of an identified parcel whose name and address appears on the last San Mateo County equalized secured property tax assessment roll (the "Assessment Roll'), or in the case of any public entity, the State of California, or the United States, means the representative of that public entity at the address of that entity known to the City. 2. The City Clerk shall cause to be prepared a master list of record owners which provides (1) the names and addresses of the record owners of the identified parcels as they appear on the Assessment Roll, and (2) in the case of any public entity, the State of California, or the United States, the address of that entity known to the City. 3. The following shall be mailed to each record owner on the master list: (i) A notice and ballot; (ii) A self addressed return envelope, which contains a notice that a ballot is enclosed and that the return envelope shall not be opened until the date of election; and (iii) Arguments and Impartial Analysis of the City Attorney. These Procedures for the Conduct of a Ballot Election By Mail shall be available on the City website at www.burlingame.org. 4. Ballots shall be mailed to the record owners on the master list by depositing the ballots in the U.S. Mail, first class, postage prepaid, not before the twenty-ninth day nor later than the tenth day prior to the date set for the election. 5. The ballot shall be nonforwardable. Any ballot that is returned to the City Clerk shall not be forwarded by the City Clerk. The City Clerk shall certify the proper mailing of ballots by an affidavit under penalty of perjury, which shall constitute conclusive proof of mailing in the absence of fraud. Whenever the City Clerk is required to mail a ballot to any address outside the territorial limits of the United States, the City Clerk shall mail the ballot by airmail and, if under any law of the United States, election ballots may be mailed without the payment of postage, the City Clerk shall so mail the ballot. C. Eligibility to Vote The master list shall be presumptive evidence of ownership of an identified parcel for voting purposes. 2. If the owner of any identified parcel is not shown on the master list, such owner may receive and vote a ballot for such parcel by filing with the City Clerk evidence of ownership satisfactory to the City Attorney. Any such evidence must be received by the City Clerk by 8:00 P.M. on May 5, 2009. The ballot provided to such owner shall be marked to identify it as a duplicate ballot. 3. In order to be counted, a ballot must be signed by the owner of an identified parcel or the authorized representative of the owner as attested to pursuant to the declaration under penalty of perjury on the ballot. 4. In the event an identified parcel is owned by multiple owners or is owned by a corporation, partnership, as community property, in joint tenancy, or as a tenancy in common, only one vote will be counted for each identified parcel. In the event that multiple owners are shown on the assessment roll and multiple ballots are mailed, each returned ballot shall be proportionate to the ownership which shall be presumed to be equal ownership percentages absent other evidence submitted to the City Clerk. In the event of multiple ownership that is not shown on the assessment roll, multiple owners may request duplicate ballots from the City Clerk upon the submission of evidence of ownership; votes will be tabulated as stated in the preceding sentence. In no event shall the votes of multiple owners be counted to total more than one vote per parcel. D. Form of Ballots The form of the ballot shall be as follows: To: • improve, upgrade and maintain the deteriorated storm drain system • protect water quality • further reduce pollutants flowing into our creeks and San Francisco Bay • prevent street flooding that impedes residents and police/fire emergency access • improve local drainage shall the City of Burlingame enact a stone drainage fee at the rate of 4.2¢ per impervious square foot, adjusted for inflation not exceeding 2% annually, with independent audits, citizen's oversight, and requiring all funds expended only on storm drains? 2. The City Clerk may cause the ballot to be printed in a manner so as to allow machine tabulation of the votes. 3. Each ballot shall contain the following: (i) The name of the property owner covered by the ballot. (ii) The address of the property owner covered by the ballot. (iii) A declaration, under penalty of perjury under the laws of the State of California, stating that the signer is the owner, or the authorized representative of the owner. (iv) Space for the signer to print and sign his or her name. (v) Space for the voter to date the signing of the declaration described in subparagraph (iii) of this paragraph. (vi) A notice that the envelope contains an official ballot and is to be opened only by the appropriate ballot proceeding officials. E. Receipt of Ballots After marking the ballot, the voter shall either: (a) return the ballot by U.S. mail or (b) return the ballot in person to the City Clerk. 2. The City Clerk shall keep the ballots in a secure container or location (the "Lock Box") until the time for tabulating the ballots which shall not commence until 8:01 p.m. on May 5, 2009. Only the City Clerk and the City Clerk's deputies shall have access to the Lock Box and to the ballots in the Lock Box. The City Clerk expects that the tabulation of ballots will begin at May 5, 2009 or as soon thereafter as the City Clerk determines to be feasible. 3. Each day upon receipt of ballots in the mail, the City Clerk, or the City Clerk's deputy, shall date stamp the return envelopes of the unopened ballots and deposit the unopened, date- stamped envelopes into the Lock Box. 4. The City Clerk shall provide a secure container or location at City Hall (the "Return Box") in which personally delivered ballots may be deposited. Only the City Clerk, and the City Clerk's deputies, shall have access to the ballots in the Return Box. At the end of each business day, the City Clerk, or the City Clerk's deputy, shall date stamp the return envelopes of the unopened ballots in the Return Box and transfer the unopened, date- stamped envelopes to the Lock Box. 5. No ballot shall be removed from its return envelope before 8:01 p.m. on May 5, 2009. 6. Only ballots, including duplicate ballots that are received by the City Clerk by 8:00 p.m. on May 5, 2009 will be counted. Regardless of when the mailed ballot is postmarked, it must be received by the City Clerk by 8:00 p.m. on May 5, 2009 to be counted. Lost, Duplicate, Withdrawn Ballots and Other Special Circumstances The City Clerk shall, upon request by an eligible voter that is part of a language minority group as that term is defined by the Voting Rights Act of 1965, provide a ballot and ballot materials translated in that person's primary language. In addition, the City Clerk shall, upon request by an eligible voter, take such affirmative steps as are necessary to facilitate voting by qualified individuals with disabilities. 2. The City Clerk shall only issue replacement ballots in the seven days prior to ballot proceeding day to voters who pick up ballots in person at the Clerk's office; no replacement ballots shall be mailed during the seven day period prior to ballot proceeding day. 3. The City Clerk shall keep a record of all ballots sent and received and shall verify, prior to counting the ballots, that only one vote has been cast for each parcel to which the proposed fee increase will apply. If the Clerk determines that a voter has attempted to vote twice, or that more than one vote has been attempted for the same parcel, both ballots shall be void. 4. If a ballot is lost, destroyed or never received, the City Clerk will mail or otherwise provide a duplicate ballot to the owner upon receipt of a request in writing from the owner, satisfactory to the City Clerk, received by the City Clerk prior to 8:00 p.m. on May 5, 2009. The City Clerk or the City Clerk's designee will mark the duplicate ballot to identify it as a duplicate ballot. 5. After submitting a ballot, the person who signed the ballot may request the City Clerk to withdraw the ballot by submitting a written statement to the City Clerk, satisfactory to the City Clerk, directing the City Clerk to withdraw the ballot, provided the request is received by the City Clerk prior to 8:00 p.m. on May 5, 2009. Only one request for withdrawal per parcel will be honored by the City Clerk. 6. A person who has withdrawn a ballot may request a duplicate ballot from the City Clerk. The City Clerk or the City Clerk's designee will mark the duplicate ballot to identify it as a duplicate ballot. When ballots are tabulated, the City Clerk will segregate withdrawn ballots from all other returned ballots. The City Clerk will retain all withdrawn ballots along with the written request for withdrawal and will indicate on the face of such withdrawn ballots that they have been withdrawn. Withdrawn ballots will not be counted. rd 8. The City Clerk will keep a record of each duplicate ballot mailed or otherwise provided and will verify, during tabulation any duplicate ballot, that only one ballot has been returned for the parcel. When tabulating the ballots, if a parcel has both a ballot from the Record Owner and a duplicate ballot provided to an owner pursuant to section C, paragraph 2 of these procedures, only the duplicate ballot shall be counted. When tabulating the ballots, if a parcel has both an original ballot (which has not been withdrawn) and duplicate ballot, only the duplicate ballot will be counted. When tabulating the ballots, if more than one duplicate ballot is returned for a parcel, the latest returned duplicate ballot will be counted. G. Counting Ballots. The vote of each voting property owner shall be secret; no voter shall place any mark upon a ballot that will make that ballot identifiable. 2. The City Clerk shall determine the validity of all ballots. The Clerk shall examine and accept as valid all ballots except those in the following categories: (i) a photocopy of a ballot; (ii) an unsigned ballot envelope; (iii) a ballot enclosed in an envelope that does not contain an original signature; (iv) a ballot enclosed in an envelope signed by a person who is not on the Master List of record owners or designated as the authorized voting representative; (v) a ballot that lacks an identifiable "yes" or "no" vote; (vi) a ballot received after the deadline specified in section E(13) of these procedures; or (vii) any ballot not delivered in compliance with the requirements of these procedures. 3. The Clerk shall write the cause of the rejection on the face of the ballot envelope. No ballot shall be removed from its identification envelope until the time for processing. No ballot shall be rejected for cause after the envelope has been opened unless the ballot lacks an identifiable "yes" or "no" vote. 4. To protect the privacy of the choices of property owners who participate in the proceeding and to protect the integrity of the balloting process, ballots shall not be public records and shall not be open to public inspection at any time. 5. The City Clerk shall allow anyone who wishes to observe the ballot return process sufficiently close access to enable them to observe and challenge whether the Clerk is following established procedures for the protest and ballot proceeding, but this right of access shall not be construed in a manner that allows observers to disrupt the Clerk's duties. 6. One vote per parcel subject to the proposed fee increase shall be allowed. Conduct of the Post -ballot Proceeding Actions: Not later than 30 days after the ballot proceeding, the City Clerk shall transmit to the Council a written notification as to the results of the ballot proceeding. 2. The City Council shall adopt a resolution declaring the results of the election on or before the fourth Friday after the election. 3. If the ballot proceeding results indicate that a majority of the voters voting upon the fee increase voted in favor of the increase, the City Council may adopt the fee increase. ORDINANCE NO. ORDINANCE OF THE CITY OF BURLINGAME ADDING CHAPTER 4.30 TO THE BURLINGAME MUNICIPAL CODE TO ADMINISTER A STORM DRAINAGE FEE The CITY COUNCIL of the CITY OF BURLINGAME ordains as follows: Section 1. Pursuant to the authority set forth in Article XIIID of the California Constitution, Government Code Sections 53750 and following, and Health and Safety Code Section 5471, as well as the general authority residing in the City to establish fees and charges, the City Council enacts an ordinance to establish an storm drainage fee in order to improve, upgrade, and maintain the storm drainage system, to further reduce pollutants flowing into Burlingame's creeks and San Francisco Bay, to prevent street flooding that impedes residents and police/fire emergency access, to improve local drainage, and better assure that the system serves the needs of Burlingame real property and the community. Section 2. Chapter 4.30 is added to read as follows: Chapter 4.30 STORM DRAINAGE FEE ORDINANCE Section 4.30.010 Section 4.30.020 Section 4.30.030 Section 4.30.040 Section 4.30.050 Section 4.30.060 Section 4.30.070 Section 4.30.080 Section 4.30.090 Section 4.30.100 Section 4.30.110 Establishment of Storm Drainage Fee Computing the Fee Setting the Fee The Fee in Fiscal year 2009-2010 Appeals by Property Owners Collection of the Fee Deposit Into Special Storm Drainage Fund Various Actions Expiration of Fee Citizens Oversight Committee Severability 4.30.010 Establishment of Storm Drainage Fee. There is established a storm drainage fee for all parcels of real property in the City that drain into City storm drainage system, including, pipes, inlets, outlets, and natural drainage courses. No fee shall be imposed unless and until the voter approval required by Constitution Article XIII D, Section 6 (Proposition 218) has been obtained. 4.30.020 Computing the Fee. (1) An annual storm drainage fee is levied upon each parcel of property that drains into the City's storm drain system. The rate per square foot of impervious area shall be determined by Resolution of the City Council upon consideration of a report of the City Engineer but in no event shall the rate exceed that authorized by required voter approval. (2) The amount of the storm drainage fee for each individual parcel shall be computed as follows: Parcel square footage shall be multiplied by the percentage of impervious area on the parcel. The resulting number shall be multiplied by the per square foot impervious area rate in order to calculate the dollar fee for the fiscal year. Said rate shall not exceed the maximum rate established by the voters, i.e. 4.192 cents per square foot of impervious area. When the impervious area of a parcel is increased or decreased, the annual fee for the parcel shall be adjusted for the fiscal year next succeeding the change in impervious area. (3)The term impervious area shall have the following meaning: the non -natural state or surface of a parcel, viewed and measured in plan, which acts as a barrier that prevents the majority of storm water from infiltrating into the ground below, including as examples but not limited to concrete, asphalt pavement or concrete paver walkways, patios or driveways; playing surfaces such as tennis courts or basketball courts; pools and pool decks; roof tops; tool sheds; carports; and/or patio covers. (3) The fee for each condominium shall be based on the individual condominium's percentage of ownership interest as shown on the assessor's roll; and if not shown are deemed to be equal ownership percentages, unless proof is submitted otherwise. (4) Vacant, unimproved parcels are still in their natural states and do not contribute any additional runoff to burden the City's storm drain system. Therefore, the storm drain user fee is not applicable to these parcels. When a vacant parcel that is not subject to this ordinance adds impervious area, it shall be required to pay a storm drainage fee based on its impervious area. (5) Streets and highways, channels, and canals are exempt from the storm drainage fee as part of the storm system. 4.30.030 Setting the Fee. (1) Commencing with fiscal year 2010-2011, the City Council, following a public hearing, shall determine the storm drainage fee. In no event shall the square footage rate for impervious area be increased beyond that rate approved by a majority vote of the property owners subject to the storm drainage fee without further approval by a majority vote of the property owners subject to the storm drainage fee; provided, however, that, without approval by a majority vote of the property owners subject to the storm drainage fee, the maximum per square foot rate for impervious area, commencing Fiscal Year 2010-2011, may be increased by an amount equal to the change in the Consumer Price Index for all Urban Consumers for the area including San Mateo County (the "CPI"), including all items as published by the U.S. Bureau of Labor Statistics as of March 1 of each year, not to exceed a maximum increase of two percent (21/o) per year. (2) The storm drainage fee shall not be deemed to be increased in the event the actual fee upon a parcel in any given year is higher due to an increase in the amount of the impervious area of the subject parcel. (3) hi any year in which the City Council does not change the rate per square foot of impervious area, the previously adopted fee shall continue in full force and effect for the next fiscal year. Property owners whose storm drainage is increased/decreased as a result a change in impervious area have appeal rights under Section 4.30.040. (4) The City Council shall not be required to enact an inflation increase in each year but may accumulate the inflationary increases and enact the cumulative amount. 4.30.040 The Fee In Fiscal Year 2009-2010. Subject to the appeal rights set forth below, the fee for fiscal year 2009-2010 shall be that parcel fee specified in the notice of protest hearing sent to the property owner. 4.30.050 Appeals by Property Owners. (1) If a property owner disagrees with the calculation of his or her storm drainage fee, the property owner may appeal the calculation within 20 calendar days after the property owner receives notice that the fee will be increased/decreased: (a) The property owner must provide written documentation explaining the reason why the storm drain fee is not correct. This documentation must include: i. The name, telephone number, mailing address, and email address, if available, of the property owner; ii. The Assessor's Parcel Number (APN) of the property in question; iii. To -scale drawings of the property in question and the impervious areas located on it with accompanying calculations. The to -scale drawings shall include the square footage and labels for each impervious area (i.e., house, garage, driveway, patio, tool shed, carport, etc.). (2) If additional documentation is required or insufficient documentation was submitted, the Public Works Department will notify the property owner. (3) Once the Public Works Department has determined that sufficient documentation has been submitted, it will analyze the appeal. The property owner will be notified in writing within three weeks after sufficient documentation has been submitted whether or not the fee will be changed. (a) Any new fee will be documented in the City's fee database. (b) The property owner can appeal the decision of Public Works to the City Council if the amount remaining in dispute after the Public Works decision exceeds $100 annually. The appeal must be made in writing and filed with the City Clerk not later than ten calendar days from the date of mailing of the Public Works Department decision. The City Clerk shall fix a time and place for hearing the appeal and shall give notice in writing to the appellant. The City Council's determination on the appeal shall be final. (4) If an appeal is granted by Public Works Department or the City Council that does not permit inclusion for the following fiscal year's property tax roll submittal, a reimbursement will be provided to the property owner by the City. (5) Any action brought against the City pursuant to this section shall be subject to the provisions of Government Code Sections 945.6 and 946. Compliance with these provisions shall be a prerequisite to a suit thereon. (6) The City Council may establish appeal fees. (7) To appeal the fee for Fiscal Year 2009-2010 a property owner must file an appeal not later than 20 days after the City Council certifies the election results. 4.30.060 Collection of the Fee, Commencing with fiscal year 2009-2010, the storm drainage fee shall be collected on the San Mateo County tax roll in the same manner, by the same persons, and at the same time as, together with and not separately from, the general taxes of the City; provided, however, in any year the City Council may, by resolution, provide for an alternative procedure for collection of the storm drainage fee. For any fiscal year in which the storm drainage fee is authorized but not collected on the tax roll, the City may collect all or a portion of the fee for such year on the tax roll in the following fiscal year or years. 4.30.070 Deposit In The Special Storm Drainage Fund. Upon receipt of moneys representing storm drainage fees, the City Finance Director shall deposit the moneys in the City treasury to the storm drainage fund and the moneys shall be subject to annual independent audit and funds shall only be expended for storm drainage improvements approved by the City Council and for the operation and maintenance of those improvements. 4.30.080 Various Actions. Without a vote of the property owners, in any year the City Council may do any and all of the following: (a) discontinue the storm drainage fee; (b) reduce the maximum square footage rate for impervious area; or (c) increase the rate per square foot up to or below the maximum voter -authorized square footage rate for impervious area if it has been previously set below such rate. In no event shall the City Council increase the rate in excess of the maximum square footage rate approved by a majority vote of the property owners subject to the storm drainage fee for impervious area without approval by a majority vote of the property owners subject to the storm drainage fee. 4.30.090 Expiration of Fee. The storm drainage fee established by this Chapter shall remain in effect until 2038. 4.30. 100 Citizens Oversight Committee. The City Council shall appoint a citizens committee to assure that the fees are used for storm drain purposes. The committee shall also review and then provide advisory input to the Public Works Director in the preparation of the budget expenditures, and any amendments thereto, from the storm drainage fund, including project priorities. 4.3 0.110 Severability. Should any provision or clause of this ordinance or application thereof to any person or circumstance be held invalid or unconstitutional that invalidity or unconstitutionality shall not affect other provisions or applications thereof which can be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are declared severable. By adopting this ordinance the City Council declares that it would have adopted this ordinance without that provision or provisions. Section 3. This ordinance shall be published as required by law and shall take effect thirty days after adoption. The City Council finds that this activity is not a project and therefore is not subject to the California Environmental Quality Act pursuant to CEQA Guidelines Section 15060(c)(3). MAYOR I, Doris Mortensen, City Clerk of the City of Burlingame, do hereby certify that the foregoing ordinance was introduced at a regular meeting of the City Council held on the 1 st day of December, 2008, and was adopted on January 20, 2009 by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: CITY CLERK